research team

Work on intellectual property, whether multiple properties or ultimately the expression of a single model (Sophie Alma-Delettre's thesis), is carried out in constant confrontation with other disciplines or concepts. In particular, situations of "breach" or even "rupture" stimulate reflection, whether it be comparing intellectual property law with common law (A), articulating the related rights of performers with social law (B), or considering the protection of cultural property using intellectual property tools (C).

A. Intellectual property versus common law

The question of the status of intangible assets, with its intellectual property perspective, "runs through" all of the team's work (see "La réserve de propriété : un mécanisme pour l'immatériel" [Retention of title: a mechanism for intangible assets], thesis by Sandrine Roose-Grenier, 2008). In her work on intellectual co-ownership, Agnès Robin has particularly focused on comparing the concept of intellectual property with that of joint ownership.

Furthermore, the proliferation of articles on intellectual property law published by members of the team attests, if proof were needed, to ERCIM's scientific presence in these fields of research, not to mention the participation of teacher-researchers in numerous conferences organized by organizations as diverse as the University, the CNRS, the Senate, the Academy of Sciences, the ABF, the AFPIDA, the French Archives Directorate, the National Foundation for Political Science, the GFFI, the IRPI, the UPC, and others.

Specifically, two collective projects provided an opportunity to refine this reflection on the confrontation between specific law and common law: the seminar on "Proprietary Models" (1) and the book "Intellectual Property and Common Law"(2).

1. Seminar on "Proprietary Models"

CECOJI (Center for Studies on International Legal Cooperation – UMR 6224) has proposed that ERCIM join a research program on the theme "Proprietary models in the 21st century," providing an opportunity to discuss new forms of appropriation and reflect on how property law is applied in different branches of law (intellectual property, living, material, and immaterial property, cultural property).

The idea was to bring together a group of researchers and teacher-researchers (around thirty) over a two-year period, both private and public sector, for seminars designed to explore several topics related to the issue of proprietary models.

A first seminar was held in Poitiers on June 2, 2005, on the theme of "Exclusivism and Individual Property."A second seminar was held in Sceaux on November 4, 2005, on the theme of "The Inappropriable," in which Nathalie Mallet-Poujol participated, on the subject of the status of information.

A seminar was organized by ERCIM in Montpellier on May 3, 2007, on the issue of "collective appropriation,"which was discussed using the examples of land and intellectual property.

2. Book: "Intellectual Property and Common Law"

ERCIM members have produced a publication on the theme of"Intellectual Property and Common Law ." The aim was to analyze the relationship between the specific regime of intellectual property law—known as "special" law—and common law, which is shaped by the powerful matrix of the Civil Code. This vast project was undertaken at a time when the issues of the fragmentation of intellectual property and the proliferation of new monopolies were being raised tirelessly.

The analysis of the interactions between common law and intellectual property law was proposed in light of examples that are necessarily limited, but which represent the first steps in what promises to be a fruitful reflection. It seemed very important to fully integrate the mechanisms of intellectual property law in order to better defend its values and specific characteristics, especially in this era of the immaterial society. The aim of this research was therefore not to erase the specificities and purposes of intellectual property law in favor of an omnipotent common law, nor to dismiss the potential offered by the latter. The richness of the legal organization of the rules applying to intellectual creations (works of the mind, related rights, designs, patents, trademarks, plant varieties, semiconductor product topographies) cannot be exempt from reference to a "parent right, " especially if this parent right allows it to provide answers to questions raised in practice in the event of a failure of the specific right. A "residual" right, so to speak...

Relationships of complementarity, opposition, rivalry, incompatibility, or principal to subsidiary, or even general to specific, are the links deciphered between these two branches of law, with the birth and subsequent fate of intellectual property law serving as the guiding thread. This analysis has been applied to a wide range of scenarios, including joint ownership in the field of intellectual property, abuse of intellectual property rights, and the reconciliation of intellectual property law with competition law.

A seminar was organized by ERCIM in Montpellieron May 30, 2006, to discuss these issues. The book entitled "Intellectual Property and Common Law"was published by PUAM in 2007.

• Reference: Intellectual Property and Common Law (edited by J.-M. Bruguière, N. Mallet-Poujol, and A. Robin), PUAM, 2007.

B. The status of performers

The status of salaried performers is one of the least explored topics in literary and artistic property law and atypical employment regimes under the Labor Code. Its study is part of the broader issue of salaried creation, as it requires a better understanding of the relationship between labor law and literary and artistic property law, which are often presented as conflicting.  This analysis is linked to the difficulties encountered by legal doctrine and case law in integrating the compromise reached by the legislature when Law No. 85-660 of July 3, 1985, was passed. This law recognizes performers' intellectual property rights over the exploitation of their performances. It thus enshrines the subjective rights that they had been demanding since the beginning of^{the 20th} century.

This compromise consisted of taking social achievements into account while legally recognizing performers' specific intellectual property rights, the spirit and structure of which are modeled on copyright law. The members of ERCIM therefore felt it was entirely appropriate to take stock of the relationship between these legal regimes and to propose a symposium to consider the many questions still raised by a status that is the result of developments in literary and artistic property and changes in labor law in Europe, particularly in France. A comparison with the approaches adopted by other European Union countries and common law countries was obviously essential. At a time of crisis for intermittent workers in the entertainment industry and difficulties caused by Internet downloading, the question of the status of performing artists was—and still is!—particularly acute...

ERCIM organized a symposium on performers' rights, which was held at the Faculty of Law in Montpellieron June 6 and 7, 2007. The speakers were performers, French and foreign intellectual property and labor law experts, representatives of authors' societies, and artists' and producers' unions.

The proceedings of the symposium, entitled "What rights for performing artists?", were published by Dalloz in 2009, in the collection "Themes and commentaries: intellectual property differently."

• Reference: What rights do performing artists have? (edited by M. Vivant, N. Mallet-Poujol, and J.-M. Bruguière), Dalloz, 2009.

C. The status of cultural property

The protection of cultural property and the rise of the concept of cultural heritage have undeniably called into question intellectual property law, particularly copyright law (see the work of S. Joly). The latter is intended to protect cultural property, among other legal objects. However, this confrontation is not straightforward. Copyright was designed as an incentive and aid to cultural creation, in that it contributes to the remuneration of creators. However, in its dimension as a monopoly of exploitation, it is perceived by some—against a backdrop of demands for free access to intellectual works and in the name of the public interest—as an obstacle to the right to culture. The practice of file sharing on the internet, for example, has crystallized this tension and prompted reflection on these new points of contention.

The launch of the Master's degree programin Cultural Property Lawat the Faculty of Law in Avignon in May 2005 provided an opportunity to hold a seminar entitled "Intellectual Property and Culture." This seminar was organized by the "Property, Standards, and Contracts"laboratory, a research team at the Faculty of Law of Avignon. ERCIM was closely involved, with the participation of Jean-Michel Bruguière, Nathalie Mallet-Poujol, and Michel Vivant. The proceedings of the seminar, entitled "Copyright and Culture, " were published byDallozen in 2007, in the collection "Themes and Commentaries: Intellectual Property Otherwise."

Furthermore, this collaboration between the two teams continued naturally, notably with the publication of a special issue of Revue Légicom, No. 36,2006/2, on "Cultural Property,"which was written in collaboration with members of ERCIM and the "Property, Standards, and Contracts"laboratory.

The legal landscape of communications has been profoundly disrupted by the phenomenon of networks and the internet. If there is one place (albeit virtual) where traditional models are being shaken up, it is cyberspace.

There is no shortage of issues challenging copyright law in the face of the rise of "free software," the boom in electronic publishing, and the emergence of new computer creations. Trademark law faces similar challenges in its confrontation with the practice of domain names, both nationally and internationally.

But the upheaval goes beyond intellectual property law. Distribution law must now be considered in terms of "cyber-distribution" (see the work of S. Alma-Delettre), while other pressing issues are emerging, such as the liability of internet service providers, electronic tracking on the web, and the "right to be forgotten online " (see the work of N. Mallet-Poujol), with all the risks involved in terms of the protection of privacy and freedoms.

More than ever, this is a reflection on "rupture" that is thus being conducted...

In addition to numerous individual works, reflection on Internet law is mainly conducted through regular publications and columns.

Michel Vivant was the long-time editor of Lamy Droit de l’Informatique et des Réseaux (Lamy Law on IT and Networks), which became Lamy Droit du Numérique (Lamy Digital Law) in 2012, the authoritative work on the subject (with Nathalie Mallet-Poujol now contributing to the "IT and Civil Liberties"section).

The Revue Lamy Droit de l’Immatériel (RLDI), edited by Pierre Sirinelli and Michel Vivant, is now associated with this work, with ERCIM members playing a major role.

Two types of "recurring" tasks are carried out as a team.

• Juris-Classeur "E-commerce"

ERCIM has taken charge of a Juris-Classeur " E-commerce"section, integrated into the Juris-Classeur Commercial. Far beyond intellectual property issues alone, the entire phenomenon of dematerialized commerce is the subject of the investigations conducted. This has led to the publication of booklets such as "Cyberdistribution" (S. Alma-Delettre, 2007); "E-commerce and the consumer" (J.-M. Bruguière), "E-commerce and online advertising " (S. Joly), "E-commerce and personal data protection" (N. Mallet-Poujol), "Domain name allocation and disputes" (E. Tardieu-Guigues, 2007), "Virtual marketplaces" (A. Robin and M. Vivant, 2007)

• "Internet Law" column in JCP ed. E

In addition, the teamas a whole has taken charge of the "Internet Law" column in the JCP corporate edition, which features both established researchers and young researchers (ATERs).

How can we protect and promote them?

How can we reconcile the respective interests of researchers and educational and research institutions with those of citizens who legitimately aspire, if not to access research, then at least to benefit from its results?

What balance should be struck between public and private interests when promoting public research?

Three topics explored these questions, which are fundamental in a knowledge-based society, in collective works:

• the Innovation and Research Act (A),
• laboratory notebooks (B)
• and legal protection of biodiversity (C)
• and the law applicable to scientific data through the CommonData research program (D).

 A. Ten years of implementing the Innovation and Research Act

On March 19 and 20, 2009, the former ERCIM organized a symposium in Montpellier entitled: " Ten years of applying the law on innovation and research (1999-2009): review and prospects."  This event was doubly justified: innovation and commercialization are at the heart of debates on the organization of research, and the Innovation and Research Act of July 12, 1999, known as the "Allègre Act" (LIR), had entered its tenth year. It was therefore both useful and interesting to take stock of the results of the application of this original measure.

Although this measure was one of the flagship instruments of the proactive policy implemented since the mid-1990s in the field of research and development, its adoption did not receive much media coverage and went relatively unnoticed. The aim of this general policy was to develop and consolidate exchanges between the public research administration and the business world. It sought to promote the transfer of technology from public research to the private sector, while at the same time promoting the results of public research.

Analyzed in each of its provisions, the law was found during the symposium to have had mixed success. Nevertheless, the measure intrinsically constituted a "soft revolution": the concepts it introduced and promotes—academic capitalism, university entrepreneurship, research promotion—are now part of everyday language, whereas they were still unknown in France in the 1990s (the Bayh-Dole Act was passed in the United States in 1980) and are now at the heart of innovation policy.

Twenty-eight participants took part over the two days. The speakers were chosen with a view to bringing together, in a deliberately open manner, all those who have been or are involved in designing and implementing policy on the exploitation of public research results, or in discussing issues relating to such exploitation. The various round tables and forums brought together academics (lawyers and economists) specializing in intellectual property, public law, and corporate law, as well as practitioners: masters of petitions at the Council of State, general rapporteurs at the Ethics Commission, and industrial property attorneys experienced in the technique of negotiating partnership agreements.

Alongside legal experts, politicians (parliamentarians, commercialization service staff, incubator managers, INPI, local elected officials, and government representatives) also participated. Finally, the debates could not have taken place without also hearing from researchers who have embarked on the LIR adventure by promoting the results of their research in the private sector, particularly through the creation of businesses.

The proceedings of the symposium, entitled "Innovation and Research in France,"were published by Larcier in 2010.

B. The laboratory notebook

On December 3, 2010, the former ERCIM organized a seminar on " The Laboratory Notebook: Practices and Challenges" at the Montpellier Law School, in collaboration with the École Polytechnique Féminine (EPF). In addition to academics, speakers included university commercialization officers, a lawyer from the CURIE Network, a pharmaceutical laboratory manager, industrial property consultants, sales directors, and the president of the association of employee inventors spoke on the issue of recording research results (institutional framework, commercialization services, qualitative evaluation, and electronic laboratory notebooks) and their attribution (contract research, proof of prior art, and patent rights).

• Reference:A. Robin, "The laboratory notebook: a key piece of evidence in research contracts," Propr. ind., No. 11 , Oct. 2011, Study 16.

C. Biodiversity and the law

On May 24, 2012, the former ERCIM organized a symposium on " Biodiversity Protection and the Law"at the Montpellier Law School, legal session (S 26), of^{the 13th Congress}of the International Society for Ethnobiology.

At the time of "Rio + 20"– celebrating the twentieth anniversary of the Convention on Biological Diversity – CBD – signed in Rio de Janeiro on June 5, 1992, under the auspices of the UN – this event provided an opportunity for important discussions on the protection of genetic resources and associated traditional knowledge, led by teachers and researchers in law and economics, as well as practitioners such as magistrates, corporate lawyers, and industrialists. Issues relating to the legal status of genetic resources, the protection of indigenous traditional knowledge, scientific collections and databases, and industrial property in research and development were discussed (see the work of C. Le Gal and V. Rage-Andrieu).

At the heart of the discussion was the Access and Benefit-Sharing (ABS) mechanism, the fair and equitable sharing of benefits arising from the exploitation of genetic resources, the third objective of the CBD, the terms of which were specified by the 2010 Nagoya Protocol.

The discussions highlighted the need to clarify and harmonize a number of concepts and procedures at the international level in order to provide security for the various stakeholders involved in biodiversity: states, indigenous and local communities, researchers, and industry.

Only then will research and development activities be able to flourish, against a backdrop of intellectual property rights, to make this new "green gold"a real source of income for both its suppliers and users.

D. The CommonData research program

Since 2016, the former Ercim has been leading a research project on scientific data, entitled CommonData ("Research data, scientific commons") under the direction of A. Robin.

The project aims to understand researchers' practices in managing their data and to identify policies that can be implemented to reconcile researchers' mission of disseminating knowledge with their mission of promoting the results of their research.

The development of digital technologies, which is revolutionizing both scientific practice and the economics of scientific publishing, has forced legislators to intervene on certain issues. This intervention has once again called into question researchers' practices regarding the publication of their scientific work (open access) and the dissemination of their data (open data).

The CommonData research program ("Research data, scientific commons?") is conducted under the auspices of MSH Sud, in partnership with Agropolis Fondation, Labex Agro, Labex Numev, Labex CemeB, EPF, INSERM U 1123 ECEVE, the University of Montpellier, and the CNRS.
The aim is to initiate a collective reflection among different disciplinary fields within the Montpellier scientific community (and beyond) on the legal and social dimensions of scientific data and on the practices of researchers and institutions (see the work of A. Robin).